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Opinion Contributor

SCOTUS must be last bulwark against NSA snooping

The NSA has been willing to throw the Constitution and courts overboard, the authors write. | AP Photo

By BILL BINNEY and J. KIRK WIEBE | 10/23/12 9:45 PM EDT

Later this month, the Supreme Court will hear a case that could define the government’s ability to monitor innocent Americans’ international communications without a warrant. The lawsuit, Amnesty International v. Clapper, argues that the Constitution bars the National Security Agency from listening to or reading Americans’ international conversations and emails without court oversight, even if Congress blesses the NSA’s actions.

Unfortunately, the government has tried to block the courts from ever reaching that constitutional issue, arguing that unless the plaintiffs can prove they will be monitored (which is impossible, since the list of who is monitored is classified), they cannot sue. Now that threshold question has reached the Supreme Court. Based on our combined six-plus decades of experience working at the NSA, we are sure there is only one just outcome: The justices should let this case proceed, giving the courts the opportunity to determine whether the executive and legislative branches have gone too far.

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Part of the Defense Department, the NSA was created to listen to and analyze foreign communications to protect our nation from threats outside our borders. Today, it is bigger than the CIA and FBI combined. For decades, those of us inside the NSA prided ourselves on our respect for the Constitution. Our touchstone was the Fourth Amendment’s protections against unreasonable searches and seizures and its guarantee that warrants could be issued only with probable cause and against specific targets. Whenever we suspected that an American abroad or someone inside the United States might be involved in terrorism or espionage, we carefully gathered the evidence and presented it to the Foreign Intelligence Surveillance Court, which meets in secret to protect classified information. Only if that court gave us permission would we monitor an American’s communications.

Then came the horrific crimes of Sept. 11, 2001, and we lost our moorings. Shortly after that terrible day, President George W. Bush authorized the NSA to wiretap Americans’ international communications without any warrant, suspicion of wrongdoing or court oversight at all. The Bush administration managed to keep this secret for years, but inside the NSA, we knew what was happening. Together with large numbers of our colleagues, we objected to the abandonment of constitutional protections. We were told to mind our own business. But this is exactly the kind of intrusion into our private lives that the Founding Fathers wanted to prevent. We resigned in protest.

Thanks so much for taking this stand. I've been following this since it first began to break years ago. I share the piece done in the New York Times several months ago with as many folks as I can. Needless to say all of them are stunned that this is going on.

We lose our rights little by little, day by day.

I deeply appreciate your sacrifices made on this. Your bravery is inspiring.